Citation Nr: 1318150 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 09-28 041 A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUE Entitlement to service connection for a right hip disability, including as secondary to a service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The Veteran served on active duty from May 1963 to May 1983. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Hartford, Connecticut RO. In December 2012, the Board remanded the matter for additional development. FINDING OF FACT A right hip disability was not present in service; arthritis of the right hip was not manifested in the first post service year; and a current right hip disability is not related to the Veteran's service and was not caused or aggravated by a service-connected disability. CONCLUSION OF LAW Service connection for a right hip disability, including as secondary to a service connected disability, is not warranted. 38 U.S.C.A. 1110, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of the claim. May 2008, August 2008, and September 2008 letters provided essential notice prior to the adjudication of his claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). These letters explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. They also informed the appellant of disability rating and effective date criteria. A February 2013 supplemental statement of the case (SSOC) readjudicated the matter after the appellant and his representative responded and further development was completed. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (noting that a VCAA timing defect may be cured by the issuance of fully compliant notification followed by readjudication of the claim). The Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The RO arranged for a VA examination in January 2013, which will be discussed in greater detail below; the Board finds this examination to be adequate as it included both a review of the Veteran's history and a physical examination that included all necessary findings. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). The Board has noted a contention by the Veteran's representative in a written brief dated in April 2013 which was to the effect that the VA examination report of January 2013 was insufficient because it did not describe the baseline level of severity prior to making a determination of whether there was aggravation of the claimed condition that existed prior to service. The Board notes, however, that the examination request in the Board's prior remand was made not for the purpose of determining aggravation during service, but rather was made for the purpose of determining whether the claimed condition was caused or aggravated by a service-connected disability. The examiner specifically concluded that no secondary relationship existed. He noted that there was no medical evidence to support a relationship with his SC ankle and foot. While the examiner did not specifically indicate that there was not secondary aggravation, the Board is of the opinion that the broad statement that there was no "relationship" adequately covers both causation and aggravation. Thus, another opinion is not required. The Veteran has not identified any evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. Legal Criteria, Factual Background, and Analysis Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of incurrence or aggravation of a disease or injury in service; and (3) evidence of a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disorder diagnosed after discharge may be service connected if all the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic disabilities (to include arthritis) may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time following discharge from active duty (one year for arthritis). 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a) (as in effect before and after October 10, 2006). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, will be service connected. However, VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310 (b), added effective October 10, 2006. The addition of 38 C.F.R. § 3.310(b) effective October 10, 2006, does not affect the consideration or the outcome of this case. It was added to implement the decision of the Court in Allen v. Brown, 7 Vet. App. 439 (1995), and the holding in that case has been binding on VA from the time of issuance in 1995. Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Id. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. 38 C.F.R. § 3.159(a)(2). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that it has reviewed all of the evidence in the Veteran's claims file and in Virtual VA, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence.) Hence, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claim. The Veteran contends that he has a right hip disability that was incurred in, or caused by, his active duty service. Alternatively, he contends that a right hip disability developed secondary to his service-connected disabilities, which include left ankle sprain with limited motion of the ankle, rated 10 percent; right foot condition status post neuroma removal associated with left ankle sprain, rated 10 percent; tinnitus, rated 10 percent; and bilateral hearing loss, rated 0 percent. The Board will address each theory of entitlement in turn. The Veteran's STRs are silent for any complaints, findings, treatment, or diagnosis regarding the right hip. On January 1983 service retirement examination, the lower extremities were normal on clinical evaluation. The Veteran denied any history of swollen or painful joints; arthritis, rheumatism, or bursitis; or bone, joint, or other deformity. Postservice treatment records show that the Veteran has received diagnoses of right trochanteric bursitis and osteoarthritis of the right hip. On August 1996 physical therapy evaluation, the Veteran reported pain in the bilateral lumbar paraspinal region. He reported that he very rarely had paresthesia in the right lower extremity from the L3 dermatome to the knee. A September 1996 limited bone scan showed that the activity within the pelvis was unremarkable. On November 1996 treatment, the Veteran complained of pain to his left buttock region. On physical examination, there was focal point tenderness upon palpation of both the right and right quadratus lumborum muscles and gluteus medius muscle. The assessment was myofascial pain syndrome. In an August 1997 statement, the Veteran stated that every physical therapist he had seen to treat his back pain had told him his hips were not level, which tended to make him favor one side or the other, which he believed was related to the stiffness of his left ankle that had deteriorated over time and caused other problems. On March 2003 VA feet examination, the Veteran reported chronic pain in the left hip for the last several years. He contended that favoring his left ankle had caused an injury to the left hip and lower back. There was no mention of any complaints regarding the right hip. July 2007 X-rays showed arthritic changes in the right hip as well as the lower part of the spine, both of which were noted as the possible cause of his right hip pain. In a September 2007 statement, the Veteran stated that several X-rays taken of his lower back showed arthritic growth in his right hip. He complained of a worsening of pain in his right hip as well as numbing of the upper half of the right leg. On May 2008 VA treatment, the Veteran complained of having right hip pain since December 2007, with radiation of a burning type of pain toward his thigh and posterior calf and occasionally to the foot. The assessment was right hip pain likely secondary to right trochanteric bursitis. On January 2009 VA treatment, the Veteran complained of worsening right hip and leg pain over the previous two years. It was noted that he was diagnosed with L4-L5 disc herniation in 1993 that led to sciatic pain on the left. He now complained of pain in the right hip (groin) area traveling down to the knee, with numbness below the knee. The impression was right hip and leg pain exacerbated by exertion and relieved with rest; it was suggested that this could be secondary to spinal stenosis with pseudoclaudication. Other possibilities were cited as osteoarthritis of the right hip, known degenerative joint disease of the right hip, and disc herniation. On March 2009 VA treatment, the diagnoses included osteoarthritis of the hips. Subsequent VA treatment records through November 2012 include diagnoses of degenerative joint disease involving the right hip. In December 2012, the Board remanded this matter to afford the Veteran a new VA examination and nexus opinion to address the secondary service connection theory of entitlement. On January 2013 VA examination, the Veteran reported that he was seen for back pain in 2007. X-rays indicated degenerative joint disease of the lumbar spine. He later received a cortisone injection in 2008 for bursitis in the right hip with no relief; he received a repeat injection with short term relief. He was later diagnosed with degenerative joint disease and spinal stenosis of L4-5 after a February 2009 MRI. He was then told in September 2009 that he had lumbar degenerative joint disease and right hip bursitis and declined further injections. He reported intermittent right hip pain after walking for 10 to 15 minutes, or shorter distances on an incline. He described the pain as burning in the hip that traveled to the lateral aspect of the thigh and could be associated with numbness and tingling. The pain was relieved by rest. He would sometimes get pain in the left buttocks as well. He rarely took Celebrex for pain treatment. He sometimes used a cane when walking long distances. He believed his symptoms were related to favoring his right leg as a result of his service-connected left ankle sprain. A November 2011 CT scan of the abdomen showed degenerative changes of the visualized spine with prominent osteophyte formation at the superior aspect of L4 and vacuum disc phenomenon; sclerotic foci were noted within the right proximal femur and left femoral head. An October 2012 CT scan of the abdomen showed the osseous structures to be grossly intact with the noted degenerative changes. Following a physical examination, the examiner concluded based on reviewing the claims file and examining the Veteran that his symptoms are more consistent with (non-service-connected) spinal stenosis having pain with ambulation that radiates to the right hip and leg (dermatone area of L4-5). The Veteran was noted to have mild functional impairment and required a cane to assist with ambulation. He had a history of bursitis that resolved with treatment. The examiner found no medical evidence to support a relationship with the service-connected left ankle and right foot. The examiner referenced recent medical literature regarding lumbar spinal stenosis and its clinical features and most common symptoms in support of this opinion. The examiner opined that the Veteran's right hip disability is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service connected disabilities. The Board finds that the January 2013 VA examination report, concluding that the Veteran does not have a current right hip disability related to any service-connected disability, warrants substantial probative weight, as it incorporates findings and statements made by the Veteran throughout the pendency of this claim, and it explains why the complaints and findings do not support a nexus between any right hip diagnosis and the Veteran's service-connected disabilities. There is no evidence that any right hip disability was manifested in service or that arthritis of the hip was manifested in the first postservice year. Consequently, service connection for a right hip disability on the basis that it became manifest in service and persisted, or on a presumptive basis (for arthritis as a chronic disease under 38 U.S.C.A. § 1112 or 1137) is not warranted. Postservice evaluation/treatment records provide no indication that a right hip disability may somehow be directly related to the Veteran's service. The post-service medical reports tend to show that the diagnosed right hip symptoms are related to a back injury unrelated to, and occurring years after, service. Therefore, direct service connection for a right hip disability (i.e., on the basis that it was incurred or aggravated in service) is not warranted. The preponderance of the evidence is also against the Veteran's alternate (secondary service connection) theory of entitlement. A VA examiner has opined that any right hip disability is unrelated to any service connected disability (explaining that it is related to non-service-connected lumbar spinal stenosis). There is no competent (medical opinion or treatise) evidence whatsoever in support of this alleged theory of entitlement. Regarding the Veteran's own opinion that he has a right hip disability that is due to his service or to a service connected disability, he is a layperson (with no demonstrated or alleged expertise in determining a medical nexus); does not offer any supporting medical opinion or medical treatise evidence; does not cite to any supporting factual data; and does not offer any explanation of rationale for his opinion. Therefore, his opinion in this matter has no probative value. The Board recognizes that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2007). That is, competent medical evidence is not necessarily required where the determinative issue in a case involves medical causation or a medical diagnosis. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. Sept. 14, 2009), citing Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet App 303 (2007) (lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). In this case, the Veteran is not providing statements related to the diagnosis of a simple disorder or about symptomatology but is instead rendering an opinion to the effect that he has a hip disability that is related to service or service connected disability. Unlike the varicose veins in Barr or dislocated shoulder in Jandreau, the claimed hip disability is not one capable of lay diagnosis, nor is it the type of condition that can be causally related to an event during military service or to another disability without medical expertise. Davidson, 581 F.3d 1313; Buchanan, 451 F.3d 1331; Jandreau, 492 F.3d 1372. The etiology of joint disease is a matter of medical complexity. The Board concludes that, although the Veteran is competent to report symptoms he may have experienced in service and after service, his statements as to the diagnosis and etiology of any current right hip disability do not constitute probative evidence in the matter. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for a right hip disability. Hence, the appeal in the matter must be denied. ORDER Service connection for a right hip disability, to include as secondary to service connected disability, is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs